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A Closer Look at the Senate’s Procedures for Releasing Classified Information under S. Res. 400

As discussed in my last post, there is (or should be) no serious controversy regarding the Senate’s authority to release classified information unilaterally pursuant to Section 8 of S. Res. 400. Yet the full Senate has apparently never taken a vote to release information under Section 8, perhaps in part because of that section’s elaborate procedural requirements.

At the outset, SSCI must make a determination, by a formal vote, “that the public interest would be served by such disclosure.” Senator Ribbicoff observed that this provision, embodied in Section 8(a), “establishes the basic rule that the committee may disclose information where disclosure is in the public interest.” CRS Legislative History of S. Res. 400 at 88.

Under Section 8(b), however, SSCI must take additional steps where the disclosure involves “any information which has been classified under established security procedures, which has been submitted to it by the Executive branch, and which the Executive branch requests be kept secret.” Such information may only be released pursuant to the process further described in Section 8(b).

The first step in this process is for SSCI to notify and consult with the Senate Majority and Minority Leaders regarding the vote to disclose classified information. The rule specifies that this consultation must take place prior to providing formal notice to the President. The purpose of this step, which was not added to Section 8 until 2004 (by S. Res. 445), is presumably to afford the Senate leadership with an opportunity to resolve the situation before formal notice to the President is given.

Once the President is notified, a five-day clock starts ticking. After five days have expired, SSCI may publicly disclose the information that was the subject of the vote, unless the President properly objects within this period. To do so, he must, “personally” and “in writing,” notify SSCI of his objection to disclosure, provide his reasons therefor, and certify “that the threat to the national interest of the United States posed by such disclosure is of such gravity that it outweighs any public interest in the disclosure.”

If the President does object within the five days, the question of disclosure may be referred to the Senate for consideration. Such referral may be made by SSCI itself, acting upon majority vote, or by the Majority and Minority Leaders, acting jointly. Again, the role of the Senate leaders was not in the original S. Res. 400, but was added in 2004. Note that there is no requirement that the matter be referred to the Senate, nor any time period within which the referral must be made.

If the matter is referred to the Senate, however, strict time limits apply. Under Section 8(b)(5), the Senate must go into closed session to consider the disclosure issue one hour after it convenes on the fourth day following the referral. The Senate must conclude its consideration of the matter by the end of the ninth day following the referral (the deadline is moved up if the Senate began its consideration earlier). At that time, “the Senate shall immediately vote on the disposition of such matter in open session, without debate, and without divulging the information with respect to which the vote is being taken.” In voting to dispose of the matter, the Senate can choose to approve or disapprove the public release of some or all of the information in question, or it can choose to send all or any portion of the matter back to SSCI for final determination.

It is fair to say that Section 8, taken as a whole, establishes procedural requirements that could impose substantial burdens on SSCI, the President and, most particularly, the Senate. (This assumes, of course, that the Senate feels some obligation to follow its rules). The drafters of S. Res. 400, however, did not expect that it would frequently be necessary for the Senate to act under Section 8. In reporting the measure that ultimately became S. Res. 400, the Government Operations Committee stated that the disclosure provision:

gives the full Senate the opportunity to vote on the matter of disclosure whenever the committee and the President are formally and explicitly in disagreement about the wisdom of disclosing certain information provided the committee by the executive branch [and the matter is referred to the Senate for consideration]. This committee expects that such a disagreement will occur only rarely. Normally the committee and the executive branch should be able to resolve any differences on such matters.

CRS Legislative History at 140.

But while Section 8 was not designed for use as a first resort or for “the mine run of cases,” as Professor Lederman notes, it was not intended as a “nuclear option” either. The drafters expected that there would be cases where the branches were at loggerheads and the full Senate would need to weigh in. Thus, Senator Church noted:

Inevitably, there will be differences between the Executive and the Legislature as to whether the national interest is served by maintaining secrecy in particular cases or whether the usual constitutional process of open debate and public scrutiny should prevail. It is my view that important questions of this kind should be brought to the full Senate for decision.

CRS Legislative History at 89.

Equally importantly, initiating the Section 8 process does not mean that the matter must eventually be presented to the Senate for decision. There are three intermediate stages in which the disclosure issue may be resolved after SSCI makes a determination under Section 8(a) that disclosure is in the public interest but before the matter is presented to the Senate: (1) if the Senate leadership intercedes to work a resolution before the President is formally notified; (2) if the President decides not to object or to object only to part of the disputed release; and (3) if SSCI and the Senate leadership decide not to refer the matter to the Senate after the President objects.

With this background, we can better assess SSCI’s failure thus far to invoke Section 8 with regard to the public disclosure of its report on the CIA detention and interrogation program.

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